Editor's note: Norman Eisen served as counsel for House Democrats in Trump's first impeachment trial and as White House ethics czar and ambassador to the Czech Republic in the Obama administration. E. Danya Perry is a founding partner of Perry Law, former Deputy Chief of the Criminal Division of the Southern District of New York, former Assistant Attorney General of the State of New York, and Director of Investigations for the Moreland Commission. Joshua Kolb is an attorney at Perry Law and served as a law clerk for the Senate Judiciary Committee.
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Georgia Judge Scott McAfee continued his string of Solomonic decisions when he on Friday rejected the disqualification of Fulton County District Attorney Fani Willis, who is overseeing the case involving former President Donald Trump and a group of his associates Accused of election interference in the state. Defense lawyers had asked that she be excluded from the trial, citing alleged conflicts of interest arising from revelations that she had a romantic relationship with private attorney Nathan Wade, whom she had hired as a lead prosecutor.
Courtesy of Norm Eisen
Norm iron
McAfee acknowledged Friday that no actual disqualifying conflict of interest had been proven, even as he criticized Willis for her behavior because her relationship with Wade looked terrible. To clarify the situation, McAfee told the DA's office that if Willis wanted to continue working on the case, Wade would have to resign. Wade did so immediately, realizing it was the right thing – even the only thing.
Courtesy of E. Danya Perry
E. Danya Perry
We have been recommending that Wade leave the case since this sideshow began to refocus on what the case is about: the mountain of evidence that Trump and his co-conspirators committed one of the gravest alleged crimes in American political history have committed. (Trump and other defendants have pleaded not guilty.) Now Wade has demonstrated his commitment to the prosecution by recusing himself from it.
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Portrait of Joshua Kolb.
Fortunately, nothing that happened during this disqualification process diminishes the underlying strength of the case against Trump and his alleged co-conspirators. And McAfee's other ruling earlier this week, in which he dismissed six of the 41 charges, did not fundamentally weaken the case. Although he dismissed some charges for lack of specificity, he declined to dismiss the key racketeering allegation — the allegation of a wide-ranging conspiracy to overturn the 2020 election results — and the key underlying evidence.
We've all heard the tape in which Trump said he just wanted to “find 11,780 votes” – which remains part of the indicted conspiracy – and Fulton County prosecutors have already secured guilty pleas from four former Trump associates for violating the Georgia criminal law. Now that the judge has ruled against disqualification, this important case can be reopened.
Once the case goes to trial, the defense will likely not be allowed to raise the issue of disqualification later in the trial. It simply has nothing to do with the merits of the case and the relevant evidence of the alleged conspiracy. And while some have expressed legitimate concerns about these allegations impacting the jury, we as trial lawyers believe this can be overcome. People's memories are short in this time of turbo-charged news cycles, and any potential jurors influenced by the disqualification efforts should be able to be weeded out through voir dire, the preliminary questioning of potential jurors.
As Friday's ruling underscores, under Georgia law, a disqualifying conflict of interest exists only when a relationship means that a prosecutor would have a motivation to seek a conviction that conflicts with the prosecutor's duty to seek justice. In previous cases, Georgia courts have clearly rejected that romantic relationships between attorneys were ever a basis for disqualification.
The defense alleged that Willis and Wade hatched an improper scheme in which Wade used his substantial government compensation to provide Willis with travel and other financial benefits.
Relying largely on Willis' testimony, McAfee concluded that “the evidence demonstrated that the financial gain resulting from her relationship with Wade was not a motivating factor for the district attorney to charge and prosecute this case.” He also found that the defendants “failed to establish that the District Attorney's conduct influenced or influenced the case to the detriment of the defendants.”
McAfee was also correct in saying that the weight of evidence did not conclusively prove that the relationship between Willis and Wade began before Wade was hired – contrary to the defense's claims that the prosecutor hired her boyfriend, thus refuting the Theory that she had done this to help her romantic partner.
Additionally, it is not uncommon in Georgia for private attorneys to be hired to supplement state resources, and McAfee noted that the $250 hourly rate paid to Wade was a “relatively low amount.” Likewise, any trips Willis and Wade took together do not constitute a conflict of interest because, like Wade's compensation, they had no impact on Trump's prosecution.
McAfee found that Willis and Wade's testimony that they shared expenses for these trips was “corroborated by other evidence” and “was not so unbelievable as to be inherently implausible.” During her testimony, Willis had stated that there was no written record of how she split the costs with Wade, as it was her habit to pay with cash. For us, her explanation was credible and particularly convincing. Authors include children and grandchildren of Holocaust survivors. Our families had large reserves of cash and often used it to pay for things, a practice that grew out of their historical experience.
Elijah Nouvelage/Pool/Getty Images
Special prosecutor Nathan Wade speaks during a hearing on former President Donald Trump's motion in the election interference case Jan. 12 at the Lewis R. Slaton Courthouse in Atlanta.
But the lack of any legal grounds for disqualification is hardly a free pass for Willis or Wade. McAfee recognized that “there are reasonable questions about whether the district attorney and her hand-picked leader are SADA.” [Wade] They testified untruthfully about the timing of their relationship, supporting the finding that there was an appearance of impropriety.”
The appearance of impropriety could jeopardize “confidence in the legal system itself,” he noted, and could lead the public to erroneously but “reasonably believe that the District Attorney's Office is not exercising its independent professional judgment completely free from any compromising influences.” Although we disagree with the judge on this point, it was the right move for Wade to quickly resign. We hope Willis doesn't prolong the distraction by seeking leave to appeal.
It is more likely that the defendants will want to appeal. But that won't stop the case. Our assessment is that these efforts will not be successful, even given the strict legal standards required in Georgia and the evidence that McAfee has already heard and evaluated.
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Now that this sideshow is over with Wade's resignation, the most important next step is for the trial to move quickly. The case does not need to be delayed by Wade leaving the team – the very capable group of assistant district attorneys and other prosecutors who have long worked on this case can continue their work. The indictment in Fulton County is critical to adjudicating allegations surrounding the 2020 election – allegations that go to the heart of our democracy and abuse of power. Therefore, the process must begin as quickly as possible so that voters are aware of Trump's role before they cast their ballot again in a presidential election in which he is on the ballot.
